Defendant's Right to Learn Confidential Informant's Identity

Louisiana Law Review
Volume 40 | Number 1
Fall 1979
Defendant's Right to a Confidential Informant's

Identity
Michael D. Bewers
Repository Citation
Michael D. Bewers, Defendant's Right to a Confidential Informant's Identity, 40 La. L. Rev. (1979)
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COMMENTS
DEFENDANT'S RIGHT TO A CONFIDENTIAL INFORMANT'S
IDENTITY
General Considerations
Although the purpose of the criminal justice system is to find

the truth, the search for truth is often confined within narrow limits
by technical rules of evidence and policy. When the issue is the
discovery of the identity of police confidential informants, technical
rules are imposed, often restricting the fact finder's view and in
some cases the truth. The courts have sought to delimit the
"allowable zone of inquiry" by balancing the interests of society in
concealing an informant's identity with the rights of the accused to
know his accusers and to have adequate means to defend himself
against false accusations.'
Information regarding the identity of an informant falls within
the broad class of communications which is labeled "privileged."
Although often referred to as the "informer's privilege," this is not
a privilege enjoyed by the informant himself. If the government fails
to assert the privilege, then the informer has no standing to do so.'
Thus, at common law, even those courts and commentators who are
most reluctant to recognize any obstruction to the production of all
relevant evidence have agreed that certain government officials
have a genuine privilege not to be compelled to disclose the identity
of informants unless it appears essential to the proper disposition of
justice.' The rationale of the privilege is to encourage citizens to
communicate to proper officials any information they have regarding
1. See Hatchett, Discovering the Identity of the Informer, 46 FLA. B.J. 644
(1972).
2. Roviaro v. United States, 353 U.S. 53, 59-60 (1957); 8 J. WIGMORE, EVIDENCE §
2374, at 752 (3d ed. 1940). According to some authorities, the one alleged to be the in-
formant may claim the privilege, and when neither the government nor the informer is
represented at trial, some jurisdictions allow the judge to invoke it for the absent
holder. See C. MCCORMICK, EVIDENCE § 111, at 237 (2d ed. 1972), and cases cited
therein.
3. E.g., Scher v. United States, 305 U.S. 251 (1938); Cannon v. United States, 158
F.2d 952 (5th Cir. 1946); C. MCCORMICK, supra note 2, § 111, at 236; 2 J. WEINSTEIN,
EVIDENCE, UNITED STATES RULES 510-19 (1978); J. WIGMORE, supra note 2.
UNIFORM RULE OF EVIDENCE 36 provides:
A witness has a privilege to refuse to disclose the identity of a person who has
furnished information purporting to disclose a violation of a provision of the laws
of this State or of the United States to a representative of the State or the
United States or a government division thereof, charged with the duty of enforc-
ing that provision, and evidence thereof is inadmissible, unless the judge finds
that (a) the identity of the person furnishing the information has already been
otherwise disclosed or (b) disclosure of his identity is essential to assure a fair
determination of the issues.
See also FED. R. EVID. 501.
LOUISIANA LA W REVIEW [Vol. 40
the commission of crimes.' As McCormick has pointed out,

"[Ilnformers are shy and timorous folk; and if their names are sub-
ject to be readily revealed, this source of information would be
almost cut off."5
One commentator has noted that, compared to the speculative
benefits of other privileged communications, the importance of pro-
tecting an informant's identity can be statistically corroborated: an
alarming number of government informants are murdered each
year.' Even if the consequences of disclosure are not drastic in all
criminal cases, or in civil cases, other undesirable consequences such
as social ostracism, employer retaliation, or defamation and
malicious prosecution actions are sufficient to deter an informant
from communicating with authorities unless he is guaranteed
anonymity.7
The government does not enjoy an absolute privilege to
withhold the identity of an informant.' However, even with limita-
4.
Whether an informer is motivated by good citizenship, promise of leniency or pro-
spect of pecuniary reward, he will usually condition his cooperation on an
assurance of anonymity-to protect himself and his family from harm, to preclude
adverse social reactions and to avoid the risk of defamation or malicious prosecu-
tion actions against him. The government also has an interest in non-disclosure of
the identity of its informers. Law enforcement officers often depend upon profes-
sional informers to furnish them with a flow of information about criminal ac-
tivities. Revelation of the dual role played by such persons ends their usefulness
to the government and discourages others from entering into a like relationship.
McCray v. Illinois, 386 U.S. 300, 308 (1967) (quoting 8 J. WIGMORE, EVIDENCE § 2374
(McNaughton rev. ed. 1961)). See also United States v. Tucker, 380 F.2d 206, 213 (2d
Cir. 1967).
Especially in the area of narcotics offenses, liquor law violations, and sexual
crimes, where an aggrieved victim rarely steps forward, the government relies heavily
on communications from informants. United States v. Tucker, 380 F.2d 206, 213 (2d
Cir. 1967); J. WEINSTEIN, supra note 3, at 510-20; Comment, An Informer's Tale: Its
Use in Judicial and Administrative Proceedings, 63 YALE L.J. 206 (1953) ("Informers'
communications . . . most repeatedly involve liquor and narcotics law violations,
larceny, vice, and illegal gambling. Reports of . . . antitrust and wage-hour law viola-
tions are also frequent."). See also Williams, The Defense of Entrapment and Related
Problems in Criminal Prosecution, 28 FORDHAM L. REV. 399, 403 (1959), where it is
stated that "ninety-five percent of all federal narcotics cases are obtained as a result of
the work of informers."
5. C. MCCORMICK, EVIDENCE § 148, at 309 (1954).
6. Former Attorney General Katzenbach estimated that between 1961 and 1965,
twenty-five of the government's informers in the organized crime field alone were
murdered. Invasions of Privacy, Hearings Before the Senate Subcomm. on Ad-
ministrative Practice and Procedure of the Comm. on the Judiciary, 89th Cong., 1st &
2d Sess. (pt. 3) at 1158 (1965), cited in J. WEINSTEIN, supra note 3, at 510-11.
7. J. WEINSTEIN. supra note 3, at 510-20; J. WIGMORE, supra note 2.
8. Roviaro v. United States, 353 U.S. 53, 62 (1957); J. WEINSTEIN, supra note 3, at
510-20.
1979] COMMENTS
tions, the very existence of such a privilege raises serious constitu-

tional questions. The sixth amendment rights of confrontation and
compulsory process and the fifth and fourteenth amendment re-
quirements of due process of law address themselves to the defen-
dant's constitutional right to a fundamentally fair trial. It is contended
that in many instances the informer privilege cannot stand in the
face of these constitutional commands.
Confrontation and Compulsory Process

A unified theory of the right of confrontation and compulsory
process has been advanced, an understanding of which casts con-
siderable light on the validity of the informer privilege.' This theory
demonstrates that the right of confrontation consists of five distinct
layers. The first layer requires that the accused not be tried in
absentia." Secondly, the confrontation clause requires the state,
whenever possible, to produce in person the witnesses whose
statements it uses against the accused." Following the production of
available witnesses, the third layer of the confrontation clause re-
quires the state to call such persons as witnesses for the prosecution
and to endeavor to elicit their evidence directly before resorting to
their out-of-court statements.'2 The fourth layer of the right to con-
frontation is the defendant's right to elicit evidence from the state's
9. Westen, Confrontation and Compulsory Process: A Unified Theory of

Evidence for Criminal Cases, 91 HARV. L. REV. 567 (1978).
10. Relying on Illinois v. Allen, 397 U.S. 337 (1970), Westen demonstrates that
although the sixth amendment prohibition of trials in absentia is not absolute, the pro-
secution must show a compelling state interest, not merely a rational basis, for the ex-
clusion of the defendant from his own trial. Westen, supra note 9, at 574.
11. Pointer v. Texas, 380 U.S. 400 (1965), rejected the view that a state has no
obligation to produce witnesses from beyond its territorial boundaries. The Court in
Pointer held that Texas had violated the defendant's constitutional right of confronta-
tion by using the prior testimony of a witness whom it made no effort to produce.
Barber v. Page,'390 U.S. 719 (1968), rejected the notion that the state may rely merely
on its customary procedures for producing witnesses. The Court in Barber held that if
a state hopes to introduce out-of-court statements, it must make a "good-faith effort"
to use all feasible means, including requests for cooperation from sister states and
federal authorities, to produce the witness in person.
12. Westen argues persuasively that if this rule were otherwise the state could
try the defendant by affidavit, provided it secured the witness's attendance at trial so
that the accused could call him as a defense witness. "Thus, the confrontation clause is
not merely a constitutional rule governing the attendance of witnesses; it also em-
bodies constitutional controls on the manner by which the state presents its case
against the accused." Westen, supra note 9, at 578. Relying on Douglas v. Alabama,
380 U.S. 415, 418 (1965), and Pointer v. Texas, 380 U.S. 400, 404 (1965), the writer
notes that "the Court has consistently emphasized that the confrontation clause is
designed to permit the defendant to cross-examine the witnesses against him."
Westen, supra note 9, at 577-78 n.30.
witnesses at trial. 8 The final layer of Westen's confrontation

analysis resolves itself in the following rule: the state is not estop-
ped to introduce out-of-court statements by witnesses who are
unavailable for courtroom examination through no fault of the state,
provided that this evidence in the form of out-of-court statements is
the best available. However, the due process clause of the four-
teenth amendment independently requires that all evidence-both
direct and hearsay-be sufficiently reliable for rational assessment
by the trier of the fact.1'
Having analyzed the right of confrontation, Westen proceeds to
demonstrate that essentially the same procedural values underlie
the correlative concept of compulsory process. 5 The first layer of
13. In Smith v. Illinois, 390 U.S. 129 (1968), the defendant was denied the oppor-
tunity to cross-examine a prosecution [informant] witness about his real name and ad-
dress, apparently on the ground that the information was immaterial and therefore
outside the scope of cross-examination under state law. The Court held that the defen-
dant's right of confrontation had been violated. In Davis v. Alaska, 415 U.S. 308 (1974),
the Court concluded:
[T]he right of confrontation is paramount to the State's policy of protecting a
juvenile 'offender. Whatever temporary embarrassment might result to [the
witness] or his family by disclosure of his juvenile record . . .is outweighed by
[defendant's] right to probe into the influence of possible bias in the testimony of
a crucial identification witness.
415 U.S. at 319. Westen argues that "Davis appears to stand for the proposition that
the defendant's right of cross-examination-like his right to be present at trial-can be
overcome, if at all, only for compelling reasons," and as in Smith this right to elicit
testimony from prosecution witnesses is not superseded by state rules of evidence to
the contrary. Westen, supra note 9, at 380-81.
14. Westen argues that his theory is a minor qualification of the Supreme Court's
interpretation of the confrontation clause in California v. Green, 399 U.S. 149 (1970),
where the Court interpreted its earlier confrontation clause cases as standing for the
proposition that evidence obtained out-of-court from witnesses unavailable at the time
of trial must possess sufficient "indicia of 'reliability'" for submission to the jury.
Westen, supra note 9, at 586. Westen notes that this standard suggests that even
evidence offered in its best available form may be inadmissible if it does not possess
the requisite "indicia of 'reliability'" as defined by the confrontation clause. Westen
fully agrees with this rule, but prefers to rely on the due process clause as a founda-
tion for the reliability requirement. "The due process clause prohibits the state (1)
from convicting a defendant unless its evidence, taken as a whole, is sufficiently pro-
bative to permit the trier of fact to find him guilty beyond a reasonable doubt," citing
In re Winship, 397 U.S. 358 (1970), "and (2) from using any single item of evidence
against a defendant which is inherently too unreliable for rational evaluation by the
jury," citing Estelle v. Williams, 425 U.S. 501, 503-04 (1976); Vachon v. New Hamp-
shire, 414 U.S. 478, 480 (1974); Leary v. United States, 390 U.S. 377, 384 (1968). "[Wle
may agree that considerations of due process, wholly apart from the Confrontation
Clause, might prevent convictions where a reliable evidentiary basis is totally lacking."
California v. Green, 399 U.S. 149, 163 n.15 (1970) (emphasis added). Westen, supra note
9, at 586, 598-600.
15. Westen, supra note 9, at 586. "Indeed, I will argue that these two provi-
sions-much like a physical object and its own mirror image-are both the converse of
one another and yet substantially identical." Id. at 569.
1979] COMMENTS
Westen's compulsory process analysis shows that this sixth amend-

ment right prohibits the state from prosecuting a defendant without
supplying him subpoena power to compel the attendance of
witnesses in his favor.'" Although the issue rarely arises, the next
layer of compulsory process guarantees the defendant's right, ab-
sent exceptional circumstances, to be present in court when
witnesses testify in his favor." The most important aspect of com-
pulsory process is its guarantee to the defendant of the right to in-
troduce his witnesses' testimony into evidence by a constitutional
standard independent of domestic rules of evidence.' 8 The final layer
of compulsory process is negative from defendant's perspective in
that the state has no duty to produce a witness to testify in defen-
dant's favor if, through no fault of the state, the witness has become
unavailable because of death, disappearance, or illness."
16. Compulsory process "operates as an independent standard defining the cir-
cumstances under which a defendant is entitled to subpoena witnesses." Id. at 587.
Thus, the state cannot limit the scope of this subpoena power to that which is provided
to the prosecution.
In State ex rel. Gladden v. LonergaI 201 Or. 163, 269 P.2d 491 (1954), the court re-
jected the notion that compulsory process was a rule of parity and enforced the defen-
dant's request for a witness held in state prison despite a statute declaring state
prisoners beyond the subpoena power of the courts and prosecution. See J. WIGMORE,
EVIDENCE, supra note 4, at § 2191. However, Westen demonstrates that although the
compulsory process clause, like the confrontation clause, requires the state to make a
good faith effort to produce witnesses for the defendant's use at trial, it does not man-
date that a state produce witnesses who are no longer available through no fault of the
state. Westen, supra note 9, at 588.
17. In Illinois v. Allen, 397 U.S. 337 (1970), the Court said that the confrontation
clause gives the defendant the "right to be present in the courtroom at every stage of
his triaL" Id. at 338 (emphasis added). Nonetheless, the Court in Allen eventually held
that this right can be forfeited by defendant's misconduct. See note 10, supra. Westen
concludes that "if the defendant has a sixth amendment right to be present during the
testimony of defense witnesses, that right must have its source in the compulsory pro-
cess clause." Westen, supra note 9, at 590.
18. In Washington v. Texas, 388 U.S. 14 (1967), the Court held that the right of
compulsory process is paramount to a state statute which prohibits a defendant's co-
indicted accomplice from testifying in the defendant's behalf. Westen summarized this
layer of procedural protection by noting:
There are undoubtedly limits to this principle that a defendant shall be permitted
to present evidence in his defense. But it is important to recognize that the ques-
tion whether the testimony of a defense witness is competent, material or non-
privileged is ultimately a federal one to be resolved by constitutional standards,
that the constitutional standard is a rigorous one, and that the standard is the
same, whether in the context of the defendant's effort to cross-examine prosecu-
tion witness [confrontation] or in the context of his effort to examine defense
witnesses [compulsory process].
Westen, supra note 9, at 593 (emphasis added).
19. Although this conclusion may seem self-evident, Westen points out that the
opposing theory is not implausible.
[The defendant's] interest in an accurate assessment of his guilt is not satisfied by
In connection with the informer privilege and in light of the

foregoing analysis, Westen argues that once the determination has
been made that a witness possesses relevant and material evidence,
the defendant's sixth amendment right to elicit the
testimony-whether it arises during cross-examination or direct ex-
amination- overrides all testimonial privileges and puts the state to
a choice between protecting the interests underlying the privilege
or prosecuting the accused. 0 This argument is supported by most of
the cases which have addressed the issue of whether a defendant's
right to make out a defense supersedes a testimonial privilege,21
although there are areas of disagreement."
the production of only so much evidence as is still available at the time of trial; he
may also have the right not to be tried at all if the available evidence of his in-
nocence is substantially incomplete.
Westen, supra note 9, at 594-95. Westen concludes that such an approach is hardly in-
evitable, and that as a matter of constitutional policy, the state should not be required
to produce witnesses who are unavailable through no fault of the prosecution or the
court. Id.
20. Westen, supra note 9, at 581. See also Westen, The Compulsory Process
Clause, 73 MICH. L. REv. 71, 159-77 (1974).
The choice can take one of two forms. If the evidence the defendant is seeking
would tend to impeach a prosecution witness, then the Sixth Amendment puts the
state to the choice between preserving the confidential nature of the privileged
information (and thus striking the prosecution witness testimony from the record),
or standing on the prosecution witness' testimony (and thus foregoing the con-
fidentiality of the privileged information). See, e.g., Davis v. Alaska, 415 U.S. 308,
320 (1974). On the other hand, if the evidence a defendant seeks would tend to
contradict the very elements of the charge against him, the Sixth Amendment
puts the prosecution to the choice between preserving the confidentiality of the
privileged information (and thus dropping the prosecution), or pursuing the pros-
ecution (and thus foregoing confidentiality). See, e.g., Roviaro v. United States,
353 U.S. 53, 60-61 (1957). Jencks v. United States, 353 U.S. 657, 670-72 (1957). See
also United States v. Reynolds, 345 U.S. 1, 12 (1953).
This proposed constitutional rule . . . rests on the assumption that the use of
an in camera inspection procedure will enable the trial court to determine
whether the privileged testimony is material and relevant to the defendant's case
before having to decide whether the witness' interest in secrecy should be over-
riden.
Westen, supra note 9, at 581 n.38. This writer fully agrees with the foregoing analysis
and will examine the in camera hearing in detail. See text at note 113, infra.
21. United States v. Nixon, 418 U.S. 683, 711 (1974) (dictum) (sixth amendment
overrides constitutionally based privilege for confidential communications between the
President and his advisors); Davis v. Alaska, 415 U.S. 308 (1974) (confrontation clause
overrides privilege for the confidentiality of juvenile court records); Chesney v. Robin-
son, 403 F. Supp. 306 (D. Conn. 1975) (confrontation clause overrides privilege for
grand jury testimony); Melendez v. Superintendent, Clinton Correctional Facility, 399
F. Supp. 430 (E.D.N.Y. 1975) (compulsory process overrides government informant's
privilege if defendant can show special need). See also Westen, supra note 9, at 627
n.164, for other cases cited therein.
22. Westen, supra note 9, at 627 n.164, and cases cited therein.
19791 COMMENTS
The conclusion is inescapable that violence would be done to the

rights of confrontation and compulsory process if they could be
superseded in all cases by the mere invocation of the informer
privilege. Certainly the right of confrontation should be the founda-
tion of a valid hearsay objection when a witness attempts to relate
the contents of an informant's statements "for the truth of the mat-
ter asserted," 8 and the state should not be able to claim that the
declarant is unavailable through no fault of its own."' Most
significantly, the compulsory process clause guarantees defendant's
right to compel the attendance and testimony of an informant whose
testimony is material to his defense. Even if the prosecution can
show a compelling state interest for withholding the informant's
identity, compulsory process demands that the prosecution be drop-
ped if withholding the informant's identity and testimony would pre-
vent the defendant from contradicting the very elements of the
charge against him.2
Due Process and Roviaro

The due process clauses of the fifth and fourteenth amendments,
although far from absolute concepts, pose formidable obstacles to
the government's claim of an informer privilege. Numerous cases
stand for the proposition that the constitutional requirement of due
23. See The Work of the Louisiana Appellate Courts for the 1969-1970
Term-Evidence, 31 LA. L. REV. 385 (1971); The Work of the Louisiana Appellate
Courts for the 1964-1965 Term-Evidence, 26 LA. L. REV. 617 (1966), reprinted in G.
PUGH, LoUISIANA EVIDENCE LAW 429, 431 (1974).
24. Federal Rule of Evidence 804 is not contra to this position, for although this
rule defines "unavailability as a witness" to include the situation in which the
declarant "is exempted by ruling of the court on the ground of privilege from testify-
ing concerning the subject matter of his statement," FED. R. EVID. 804, its hearsay ex-
ceptions are limited to four narrowly defined categories which rarely have anything to
do with an informant's hearsay statements offered for the truth of the matter
asserted. FED. R. EVID. 804. In addition its omnibus exception would be of no avail to
the prosecution, because it requires that the state disclose the name and address of
the unavailable declarant. FED. R. EVID. 804(5).
25. Westen, supra note 9, at 581. See note 38, infra, and note 21, supra. See also
Westen, supra note 20, at 159-77; The Work of the Louisiana Appellate Courts,
1974-1975 Term-Evidence, 36 LA. L. REV. 666 (1974), reprinted in G. PUGH, LOUISIANA
EVIDENCE LAW 221 (Supp. 1978). In Melendez v. Superintendent, Clinton Correctional
Facility, 399 F. Supp. 430 (E.D.N.Y. 1975), the court stated:
If he [the informant] is such a potential witness, then his testimony belongs in the
case, and if his identity is called for by the Petitioner, manifestly it cannot be
denied to him except in the service of some important interest, an interest that
outweighs the defendant's interest in access to witnesses in the control of the pros-
ecution.
399 F. Supp. at 437. Although Melendez was grounded explicitly on the right of com-
pulsory process, it still recognizes that a compelling state interest might override the
right of compulsory process.
process has been equated to the basic concepts of fairness." A court

should not lightly dismiss the argument that it offends the basic
principles of fairness to require an individual to make out his
defense without the names and testimony of those intimately involved
in his prosecution. The leading case on the informer privilege,
Roviaro v. United States,27 was itself grounded on the "fundamental
requirements of fairness," although the Court never specifically
denoted this as a due process right."
In Roviaro, the defendant entered the car of "John Doe," who
was working with two federal narcotics agents and two local
policemen. One of the federal agents was hiding in the trunk of the
car, from which point he could hear the conversation of Doe and the
defendant. The three other officers tailed Doe's car in two cars, as
Doe made a circuitous route through the city. Eventually Doe stop-
ped his car, as observed by one of the officers tailing Doe's car from
about 100 feet away. This officer further observed the defendant get
out of Doe's car, walk to a nearby tree, retrieve a package which he
deposited in Doe's car, and then wave to Doe and walk away. This
officer and the one in the trunk immediately inspected the package
and found a white powder, which a later test proved to be an opium
derivative. The officer concealed in the trunk had heard the conver-
sation between Doe and the defendant. He testified that the defen-
dant greeted John Doe and directed him where to drive, that the
defendant had asked Doe about money which Doe owed him, and
that after he retrieved the package, the defendant told Doe that "I'll
call you in a couple of days."'
26. E.g., Ham v. South Carolina, 409 U.S. 524 (1973); Washington v. Texas, 388
U.S. 14 (1967); Gideon v. Wainwright, 372 U.S. 335 (1963); Lisenba v. California, 314
U.S. 219 (1941).
27. 353 U.S. 53 (1957).
28.
A further limitation on the applicability of the [informer's] privilege arises from
the fundamental requirements of fairness. Where the disclosure of an informer's
identity, or the contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to the fair determination of a cause, the
privilege must give way. In these situations the trial court may require disclosure
and, if the Government withholds the information, dismiss the action.
Id at 60-61. Other limitations on the scope of the informer privilege include situations
where its invocation would not serve the privilege's underlying purpose.
Thus, where the disclosure of the contents of a communication will not tend to
reveal the identity of an informer, the contents are not privileged. Likewise, once
the identity of the informer has been disclosed to those who would have cause to
resent the communication, the privilege is no longer applicable.
Id at 60.
29. The importance of the overheard conversation is that it strongly implies that
the defendant knew who "John Doe" was, and that, therefore, as the government sug-
gested to the Supreme Court, the trial court's failure to require disclosure would not
1979] COMMENTS
Believing that no fixed rule with respect to disclosure was

justifiable, the Court announced a balancing test:
The problem is one that calls for balancing the public interest in
protecting the flow of information against an individual's right
to prepare his defense. Whether a proper balance renders non-
disclosure erroneous must depend on the particular cir-
cumstances of each case, taking into consideration the crime
charged, the possible defenses, the possible significance of the
informer's testimony and other relevant factors.8
Within this factual framework the Court concluded that John
Doe was the defendant's one material witness unless the defendant
waived his constitutional right not to take the stand in his own
defense. The Court found that this informant, having played a pro-
minent role in the criminal occurrence, might have been crucial in
establishing a defense, such as entrapment. Furthermore, Doe
"might have thrown doubt upon petitioner's identity or the identity
of the package." Also, the Court noted that Doe was the "one
witness who might have testified to petitioner's possible lack of
knowledge of the contents of the package that he 'transported' from
the tree to John Doe's car."'"
Because the Roviaro Court failed to hold specifically that defen-
dant's right to learn the identity of "John Doe" was required by due
process of law, Roviaro has been read as an exercise of the Court's
supervisory power over the federal courts, rather than as a matter
of constitutional law. The Supreme Court itself perpetuated this
reading of Roviaro in McCray v. Illinois."
McCray concerned the right of the defendant to learn the identity
of a confidential informant at a preliminary hearing to determine
probable cause for defendant's arrest and the incidental search. The
Court held that neither the due process clause of the fourteenth
be prejudicial even if erroneous. Citing Sorrentino v. United States, 163 F.2d 627 (9th
Cir. 1947), the Court answered this argument by saying:
However, any indications that petitioner, at the time of the trial was aware of
John Doe's identity are contradicted by the testimony of Officer Bryson that John
Doe at police headquarters denied knowing, or ever having seen, petitioner. The
trial court made no factual finding that petitioner knew Doe's identity. On this
record we cannot assume that John Doe was known to petitioner, and if alive,
available to him as a witness. Nor can we conclude that John Doe died before the
trial.
353 U.S. at 60.
30. 353 U.S. at 62.
31. Id. at 64. The Court had earlier noted that where "knowledge" is an element
of the crime the testimony of a participating informant might be highly material. Id- at
63.
32. 386 U.S. 300 (1967).
amendment nor the sixth amendment right of confrontation is

violated when a state court recognizes the privilege against
disclosure of the identity of an informant where the arresting of-
ficers' sworn testimony fully supported a finding of probable cause. 3
In dictum the Court stated: "What Roviaro thus makes clear is that
this court was unwilling to impose any absolute rule requiring
disclosure of an informer's identity4
even in formulating evidentiary
rules for federal criminal trials."
Despite this prevailing interpretation of Roviaro, a fascinating
opinion by Judge M. Joseph Blumenfeld of the District Court for
Connecticut, was handed down in 1973, showing that the right to the
informant's identity has constitutional dimensions. Hawkins v.
Robinson 5 was a habeas corpus proceeding brought by a state
prisoner after his conviction for selling heroin. At his trial petitioner
had sought the name of an informant who was present during the
drug transaction between petitioner and a narcotics agent. The trial
court sustained the state's objection to this line of questioning. The
Connecticut Supreme Court refused to consider the merits of peti-
tioner's appeal because petitioner's counsel had failed to give the
court some "inkling" as to the grounds of admissibility, and had fur-
ther failed to take formal exception to the judge's ruling, as re-
quired by the State Practice Book."
Judge Blumenfeld, after finding that petitioner had exhausted
his state remedies, stated that the central issue in the case was raised
by the Connecticut Supreme Court's interpretation of Roviaro in
Connecticut v. Harris.7 In resolving this issue88 the federal court
33. Id. at 313.

34. Id. at 311.
35. 367 F. Supp. 1025 (D. Conn. 1973).
36. State v. Hawkins, 162 Conn. 514, 294 A.2d 584, cert. denied, 409 U.S. 984
(1972).
37. 159 Conn. 521, 271 A.2d 74 (1970).
38. This issue is best summed up in the following passage from the federal court's
opinion:
The United States Supreme Court in Roviaro held that the "fundamental re-
quirements of fairness" dictate the disclosure of an informant's identity in certain
circumstances, but nowhere in the opinion did the Court explicitly state that such
disclosure was required by a specific provision of the Constitution. As noted
above, the Connecticut Supreme Court held that Roviaro dealt with "federal rules
rather than constitutional rights." It relied upon McCray v. Illinois, in which the
United States Supreme Court discussed its holding in Roviaro in connection with
the formulation of "evidentiary rules for federal criminal trials." An issue crucial
to petitioner's case is thus presented: if disclosure of the informant's identity
under the circumstances discussed in Roviaro is solely a matter of enforcement of
"evidentiary rules for federal criminal trials," then the ruling of the trial judge
was at best an error on a question of evidence, and the failure of the trial judge
to order such disclosure does not rise to the level of a constitutional ground upon
which petitioner may apply to this Court for a writ of habeas corpus. If, on the
19791 COMMENTS
noted that the phrase "fundamental requirements of fairness" as used

in Roviaro connotes a constitutional guarantee. 9 Observing that
other federal courts had evidently assumed that the requirements of
disclosure in particular circumstances were rooted in the constitu-
tional guarantee of a "fundamentally fair" trial," Judge Blumenfeld
particularly noted that Roviaro has at least twice been used as a
foundation for the granting of a writ of habeas corpus for state
prisoners, further affirming that the case involves constitutional
guarantees and not merely federal evidentiary rules."
Concluding his argument that in some cases an accused has a
constitutional right to the name of an informant, Judge Blumenfeld
stated:
We need not indulge in semantic gymnastics or turn conceptual
somersaults over the fact that the Supreme Court did not
specifically denote the Due Process Clause as the basis for its
decision in Roviaro: it is beyond peradventure that the right to a
trial in which the "fundamental requirements of fairness" are
secured is a right essential to, and at the very heart of, the pro-
tections guaranteed by our Constitution.'
other hand, the disclosure of the informant's identity required in Roviaro and
sought at petitioner's trial was dictated by constitutional requirements, then peti-
tioner's constitutional rights may have been violated.
367 F. Supp. at 1029-30 (citations omitted).
39. The court cited numerous cases for the proposition that due process is the
equivalent of the basic concept of fairness. See note 26, supra.
40. United States v. Emory, 468 F.2d 1017, 1020-21 (8th Cir. 1972); Burwell v.
Teets, 245 F.2d 154, 165 (9th Cir. 1957), cert. denied, 355 U.S. 896 (1958).
41. United States ex reL Drew v. Myers, 327 F.2d 174, 180-81 (3d Cir.), cert.
denied, 379 U.S. 847 (1964); Hernandez v. Nelson, 298 F. Supp. 682, 685-87 (N.D. Cal.
1968), aff'd, 411 F.2d 619 (9th Cir. 1969).
42. 367 F. Supp. at 1034. The recent case of Pena v. LeFerve, 419 F. Supp. 112
(1976), following the rationale of the Connecticut federal district court in Hawkins,
stated:
[Ilt is probable that the Supreme Court was concerned not merely with the for-
mulation of a rule of evidence in federal criminal trials: at stake was the basic
fairness of the proceedings against Roviaro. And, the denial of basic fairness in a
criminal proceeding is a "violation of the Constitution ... of the United States."
28 U.S.C. § 2254(a). Furthermore, where the very integrity of the fact finding pro-
cess is at issue, i.e., in the presentation or exclusion of evidence directly relating
to an accused's innocence or guilt at trial, the Supreme Court has determined the
accused's "fundamental" rights to be of constitutional origin.
419 F. Supp. at 117. The Pena Court went on to note that Roviaro did not lay down a
blanket rule requiring disclosure of a confidential informant's identity whenever a
defendant demanded it. The court concluded that "when the factors are considered
together: the minimal role the informer played, the strong identification testimony, the
lack of any allegation of entrapment, and the paucity of petitioner's alibi defense, lead
to the conclusion that the trial court properly denied petitioner's request for
disclosure." 419 F. Supp. at 118.
It can be concluded that the informer privilege, like other

privileges or rules of evidence or competence, often operates effec-
tively to deny the defendant the benefit of exculpatory evidence and
thus may violate due process of law. Most rules of evidence and
competence are designed to promote the integrity of the fact finding
process by excluding potentially unreliable or misleading evidence,
but they are nonetheless vulnerable to constitutional attack if they
have the effect of seriously inhibiting the defendant's right to make
out a defense." Privileges, on the other hand, are designed to pro-
mote relationships and interests outside the courtroom by permit-
ting witnesses to withhold even reliable evidence. Although it is
often stated that these extrajudicial interests, which privileges
serve to protect, are more important than the unfettered determina-
tion of the truth in judicial proceedings, this writer agrees with
Westen that "no interest protected by a privilege is sufficiently im-
portant to outweigh the defendant's right to establish his innocence
through the presentation of clearly exculpatory evidence." 4
Even if one reads Roviaro as based on the Court's supervisory
jurisdiction over the lower federal courts, Roviaro's reasoning. and
language suggest that the decision was constitutionally compelled.
Having concluded that the government has a significant interest in
preserving the confidentiality of its sources of information to sup-
port a federal "informer privilege," the Court found that the scope
of such a privilege does not extend so far as to allow concealment of
43. See Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388
U.S. 14 (1967). In Washington, the compulsory process clause was held to supersede a
rule of competence on the ground that the state's competency rule had the effect of
abridging defendant's right to present a defense. In Chambers, the Court found a
violation of the due process clause when two traditional state evidentiary rules effec-
tively denied the defendant a fair trial. The trial court had invoked the "voucher
rule"-that the party calling a witness vouches for the witness's credibility-to pro-
hibit Chambers from impeaching his own witness. This witness had signed a written
confession and made other self-incriminating statements shortly after the crime occur-
red but had repudiated his confession by the time Chambers came to trial. The state
did not call this witness to the stand, because although he was willing to testify that
he was himself innocent, he did not claim to possess information linking Chambers to
the crime. The trial court also employed the hearsay rule to prohibit Chambers from
offering the testimony of three witnesses to whom this witness had made oral confes-
sions shortly after the crime. Westen, who was counsel for Chambers before the
United States Supreme Court, notes:
[The Court] apparently for jurisdictional reasons .... based its decision not on the
rights of confrontation and compulsory process but on the ground that the defen-
dant had been denied a fair trial under the due process clause. Nonetheless, there
is reason to believe that under other procedural circumstances the Court would
have decided Chambers directly on Sixth Amendment grounds . . ..
Westen, supra note 9, at 607.
44. Westen, supra note 20, at 161. See text at note 20, supra.
19791 COMMENTS
exculpatory testimony. As noted by Westen: "[W]hile the Court

defined the scope of the federal privilege on nonconstitutional
grounds by weighing the two conflicting interests, one of those in-
terests-giving the defendant the 'right to prepare his defense'-is
constitutionally based and would compel the same result on constitu-
tional grounds.""6
Roviaro's Progeny
Because the Supreme Court has not specifically recognized a
constitutional right to learn the identity of an informant, most
federal and state courts have, in turn, side-stepped constitutional
challenges to the informer privilege. Following the guidelines an-
nounced in Roviaro, the majority of the decisions employ a balancing
test in order to ascertain whether disclosure is necessary in a par-
ticular case. As one commentator has pointed out, the courts have
developed what amounts to a checklist of elements which must exist
before an accused can surmount the informer's privilege." This
checklist includes: the trial stage must have been reached; 7 the in-
formant must have participated significantly in the criminal act with
which the accused is charged;' 8 the crime must be of such a nature
that the informant's testimony will be useful in the formulation of
realistic defenses;'9 and the informer must be a stranger to the ac-
cused." The courts have also considered several possible defenses
enumerated in Roviaro to which an informant might contribute: en-
trapment, alibi, mistaken identity, and lack of sufficient knowledge
on the part of the accused where knowledge is an element of the
crime."'
In addition to the foregoing necessary elements, the courts have
placed a heavy burden on the accused to specify concrete reasons
45. Id. at 165.

To prosecute a person while withholding material witnesses in his favor is indeed
"unfair," not only in some general due process sense, but in the specific sense that
it denies him access to evidence of his innocence. This is precisely the kind of un-
fairness the framers intended to prohibit by adopting the compulsory process
clause.
Id. at 166.
46. Hayes, Disclosure of Informers: The Accused's Right, 48 CONN. B.J. 91 (1974).
47. McCray v. Illinois, 386 U.S. 300 (1967).
48. Rugendorf v. United States, 376 U.S.*528 (1964); Roviaro v. United States, 353
U.S. 53 (1957); United States v. Clark, 482 F.2d 103 (5th Cir. 1973). The informant's
degree of participation is one pre-requisite which has received extensive treatment.
49. Roviaro v. United States, 353 U.S. 53 (1957); Hawkins v. Robinson, 367 F.
Supp. 1025 (D. Conn. 1973).
50. Roviaro v. United States, 353 U.S. 53 (1957); United States v. D'Angiolillo, 340
F.2d 453 (2d Cir. 1965).
51. 353 U.S. at 64.
why he needs to know the identity of the informant. 2 However, if

the defendant shows sufficient grounds for his requested disclosure,
it will be reversible error for the trial court to fail to order such
disclosure. 3 Further, in the event disclosure of the informant is
merited, at least one United States Court of Appeals has imposed
the additional burden upon the prosecution to assist in producing
4
the informant.1
The Fifth Circuit

The fifth circuit jurisprudence on the right of the accused to
learn the name of an informant has been developed extensively in
recent years. The fifth circuit in fact anticipated the Supreme
Court's decision in Roviaro.5" An analysis of the cases reveals that
the fifth circuit has used a strict Roviaro approach, balancing the
benefits to the defendant of disclosure and production against the
potential harm to the informant or society. The proper ruling in the
fifth circuit will depend upon the specific facts and circumstances of
52. In Rugendorf v. United States, 376 U.S. 528 (1964), the Court described the
burden as follows:
The necessity for disclosure depends upon "the particular circumstances of each
case, taking into consideration the crime'charged, the possible defense, the possi-
ble significance of the informer's testimony, and other relevant factors .... " Peti-
tioner did not develop any such criteria with reference to the merits of the case ....
Never did petitioner's counsel indicate how the informant's testimony could help
establish petitioner's innocence.
Id at 535.
53. United States v. Portomene, 221 F.2d 582 (5th Cir. 1955). Portomene was cited
by the Supreme Court in Roviaro. The fifth circuit in Portomene rejected the govern-
ment's argument that if the "refusal to disclose" ruling was erroneous, it was harmless
because the defendant testified that he thought he knew the informant's identity and
believed the informant to be Joe Vega, who had a motive to frame him. The court said:
[lit does not lie in the mouth of the government to say that, though the court er-
red by depriving the defendant of the information he sought and to which he was
entitled, and thus visited a wrong upon him, the conviction should nevertheless
stand because the amount and extent of the prejudice is not precisely shown.
Id at 584. Many subsequent fifth circuit cases have cited Portomene without
repudiating this point, so it can be argued that the fifth circuit does not require that
the informant be a stranger to the accused. However, it can be argued that Roviaro
impliedly holds that if the defendant had known the accused then the refusal to
disclose would have been harmless error. See note 29, supra.
54. United States v. D'Angiolillo, 340 F.2d 453 (2d Cir. 1965). In D'Angiolillo, it
was said: "The rule emerging from these and earlier decisions is that, where the in-
former's testimony may be relevant to the defense, the defendant is entitled to his
name, to such information as the government may have concerning his whereabouts,
and to reasonable cooperation in securing his appearances." Id. at 455. This is consis-
tent with Westen's theory of compulsory process since the court found the witness to
be available. See note 16, supra.
55. See note 53, supra.
19791 COMMENTS
each individual case. 56 However, as one recent fifth circuit case,

United States v. Fischer,7 has pointed out, although the courts have
not attempted to formulate a blanket rule for informant cases,
several broad categories have emerged. 8
As the Fischer court notes "at one extreme are those cases
where the informant was a mere tipster. 9 It is settled that the
Roviaro principle does not require disclosure and production of such
an informant."" ° The major fifth circuit case supporting this rule is
United States v. Clark.1 An analysis of Clark is disturbing from the
outset for it is readily apparent that the informant was not a mere
tipster. In Clark the informant introduced two special narcotics
agents to the defendant, who shortly thereafter sold some heroin to
one of the agents. The defense introduced no testimony, but re-
quested the name of the informant, which was denied. The court
held that where the evidence shows that an informant is nothing
more than an tipster and does not participate in the transaction, no
disclosure of his identity is required. 2 Probably of more significance
is the following language of the court:
The critical factor in Roviaro which favored disclosure, not pre-
sent here, is that the informer was not only an active participant
but the sole participant other than the defendant in the crime
charged, and was the only witness in a position to amplify or
contradict testimony of the Government's witnesses."
It is contended that, although the informant's "sole" participa-
tion in the transaction is a distinguishing feature in Roviaro,
nonetheless the informant in the Clark case is still the only witness
in a position to "amplify or contradict" the testimony of the govern-
ment's witnesses other than the defendant himself. The New York
federal district court in Melendez v. Superintendent, Clinton Correc-
tional Facility64 correctly noted the necessity of the informant's
testimony in a strikingly similar factual setting. 5 However,
56. This writer will attempt to show that unfortunately these rulings have not
always been proper.
57. 531 F.2d 783 (5th Cir. 1976).
58. The court's treatment of the informant issue is very interesting and will be
discussed in detail.
59. See Bourbois v. United States, 530 F.2d 3 (5th Cir. 1976); United States v.
Clark, 482 F.2d 103 (5th Cir. 1973).
60. 531 F.2d at 787.
61. 482 F.2d 103 (5th Cir. 1973).
62. Id. at 104.
63. Id.
64. 399 F. Supp. 430 (E.D.N.Y. 1975).
65. The New York court said:
Uncertainty arose on the prosecution's own testimony concerning the presence of
the alleged informer throughout the transaction, but that uncertainty left open
Melendez can be distinguished from Clark in that the defendant in

Melendez had raised the defense that no transaction involving
himself had taken place, whereas the defendant in Clark failed to
allege a defense which necessitated disclosure of the informant's
identity."
The other fifth circuit case cited in Fischer for the "tipster" rule
is Bourbois v. United States.7 In Bourbois a narcotics agent, acting
on information provided by a previously reliable informant, arrested
the defendant and seized some 333 pounds of marijuana from his
car. His motion to suppress having been denied, defendant was con-
victed of possessing a controlled substance with intent to distribute.
The fifth circuit summarily affirmed the conviction on appeal.
Thereafter the defendant filed a motion to vacate the judgment and
sentence, alleging that the government's failure to provide him
with the identity of the informant violated his right of confrontation,
was a denial of due process, and constituted plain error. The district
court denied relief, and in a short per curiam opinion the fifth circuit
affirmed. The court held that the government is not required to
disclose the identity of an informant who is a mere tipster and not
an active participant in the offense charged.
Unlike the Clark case, Bourbois is a "pure tipster" case in that
the informant played no active part in the crime charged and never
came into contact with the defendant during a stakeout or criminal
transaction. More significant is the fact that the fifth circuit in its
not only the possibility that the informer was present throughout, but also the
possibility that, if he stood apart from the final phase of the transaction, he was
close enough to see whether anything passed from hand to hand after he stood
aside . . . . The alleged informant if present to the extent that the prosecution's
evidence indicated, would, if the police testimony was fully truthful, have been a
merely cumulative prosecution witness. But if the critical testimony of the under-
cover detective was suspect, the alleged informer's testimony could have con-
tradicted it along a half dozen imaginable paths not excluding the identity of the
seller, failure to make a "buy" (for, of course, not every approach even to a known
peddler results in a transaction; even peddlers run out of stock), refusal to deal
(whether or not petitioner was a peddler), recognition of the undercover officer as
what he was, etc.
Id. at 438-39.
66. The Clark court stated in a footnote that it had considered defendant's
argument in light of Brady v. Maryland, 373 U.S. 83 (1963), which was cited as authori-
ty for the proposition that due process is violated by suppression of evidence favorable
to the accused. However, it found that nothing in the record indicated that the in-
former possessed exculpatory information, which would tend to benefit appellant or to
bring this matter within the ambit of Brady. 482 F.2d at 104. Cf. United States v.
Davis, 487 F.2d 1249 (5th Cir. 0973).
67. 530 F.2d 3 (5th Cir. 1976).
68. 28 U.S.C. § 2255 (1949).
69. 530 F.2d at 3.
19791 COMMENTS
per curiam opinion did not address defendant's constitutional claims.

Instead the court merely cited cases from the fifth circuit which had
developed the foregoing rule out of the Roviaro balancing test. One
can postulate, however, that if the defendant had alleged that he
was being framed (i.e., if all the contraband had been in the trunk
and he claimed that he did not know it was there) and had coupled
that allegation with a claim that to deny him the name of the infor-
mant was a violation of his right to compulsory process, the court
would have had to address this constitutional issue. Otherwise, how
could the defendant make out his defense of a frameup without call-
ing a person who might have planted the contraband in his car?
The next category of cases enumerated in Fischer as those at
the opposite extreme from the "tipster" cases is that group of cases
such as Roviaro itself, in which the informant has played a crucial
role in the alleged criminal transaction, and disclosure and produc-
tion of the informant are required to ensure a fair trial."0 The
Fischer court stated that examples of such cases in the fifth circuit
7
are United States v. Jiminez-Serrato, " in which the informant was
the only participant in the transaction who could establish the defen-
2
dant's mens rea, and Portomene v. United States," the pre-Roviaro
case in which the informant was the only one who actually purchased
narcotics from the defendant.
In Jiminez-Serrato the defendant was convicted of possession of
counterfeit money, a crime requiring knowledge and intent."3 At
trial the prosecution's evidence consisted solely of the testimony of
two Secret Service agents. The first agent testified that he had met
the defendant while on an undercover Secret Service mission in Col-
umbia and that at that meeting the defendant offered to supply him
with some counterfeit bills. However, when the bills were to be
delivered, the defendant never appeared. The second agent testified
that on a given day a confidential informant came to his office with
some counterfeit bills which the informant claimed he had received
from the defendant, who was waiting for the informant at a hotel.
The agent marked the bills and then proceeded to the hotel with
several other agents and the informant. The agent testified further
that the informant was instructed to present the sealed envelope
containing the bogus bills to the defendant and state that he had
been unable to pass them off. The agents "staked out" the conversa-
tion of the informant and the defendant which took place in the lobby
of the hotel and arrested the defendant shortly after he had ac-
70. 531 F.2d at 787.
71. 451 F.2d 523 (5th Cir. 1971).
72. 221 F.2d 582, 583-84 (5th Cir. 1955).
73. 18 U.S.C. § 472 (1948).
cepted the envelope. The defendant testified at trial that he had met
the informant through a man he had known for ten years and had
entrusted a ring to the informant to sell. The defendant further
testified that when the informant approached him in the lobby, the
informant said: "Take this and then later we will talk."
On appeal the court noted that the sole point of argument was
whether knowledge, intent, and concealment were sufficiently proven
by the government. The court concluded that except for the in-
ference which could be drawn from the first agent's testimony,
there was no evidence in the record that could support the judge's
finding of guilty knowledge. Thus, the court concluded with the
following statement:
In essence, the case boils down to whether the defendant, who
took the stand and testified subject to cross-examination, or the
unnamed and unproduced Government informant is to be believed,
for it is only the informant's suggestion to the Government's
agents that he obtained the counterfeit bills in question from
defendant which ties him to the bills. While the informant has a
qualified privilege not to testify, the Government's attempt to
make its case against Serrato without the informant's testimony
failed to prove mens rea.74
This case is not a Roviaro problem at all, although the court's
reliance on Roviaro is certainly justifiable. Although the opinion is
not clear on this point, it appears that the defendant never re-
quested the name of the informant and had instead correctly taken
exception to the government's failure to prove mens rea. Further,
the quoted passage of the court's opinion shows that the true
grounds for reversal were that defendant was convicted on hearsay
evidence and that his sixth amendment right of confrontation had
been violated."
The third category of informant cases delineated by the Fischer
court is that group of cases typified by United States v. Toombs, 7 in
which "there was a slight possibility that the defendant might
benefit from disclosure, but the government had demonstrated a
compelling need to protect its informer."" Toombs is a difficult case
74. 451 F.2d at 526, citing Roviaro v. United States, 353 U.S. 53 (1953).
75. It should be emphasized that the defendant's right of confrontation was not
violated because the name of the informant was not disclosed to him. Rather, this con-
stitutional protection was abridged because the true witness against him, which proved
a necessary element of the crime, was not produced so that defendant could confront
and cross-examine him. However, it can be argued that the case merely stands for the
proposition that the government cannot abrogate its responsibility to prove an element
of a crime, such as mens rea, by claiming the informer privilege.
76. 497 F.2d 88 (5th Cir. 1974).
77. 531 F.2d at 787.
19791 COMMENTS
and illustrates just how intricate the balancing test can be in an in-
formant case. Due to space limitations the involved details of the
testimony presented by the government and by the defense will not
be recounted in this comment. Judge Ainsworth does an excellent
job in distinguishing the factual context of this case from that of
Roviaro, provided one takes the government's version of the facts as
true. Judge Ainsworth might have been attempting to circumvent
this problem when he stated in his opinion: "Conceding, arguendo,
the unlikely possibility that the informant would have corroborated
defendant's account of the events, his testimony would have been
cumulative to that of the two defense eyewitnesses, whom the jury
78
chose to disbelieve.
In the first place it might not be so unlikely that the informant
would have corroborated the defendant's account of the events.
After all, in Roviaro, which the court painstakingly distinguished,
the informant had denied ever seeing the defendant when con-
fronted with him at the police station on the night of the alleged
transaction. In the second place, although the informant's testimony
might have been cumulative, the effect on the jury of the
informant's repudiating the government's version of the story could
have been devastating.
Another disturbing aspect of the Toombs case is the court's
analysis of the defendant's request and reasons for disclosure. As
stated earlier the burden is on the defendant to show why
disclosure is necessary.79 Regarding the defendant's request for
disclosure of the informant's identity the Toombs court said: "In his
motion for disclosure and accompanying affidavit, appellant's allega-
tions that the informant was an active participant and a material
witness to the alleged transaction were merely conjectural."80 The
fallacy of such an argument is readily apparent, for in Toombs the
informant's participation was not a product of defense counsel's "fer-
tile imagination." The defense had three witnesses, the defendant
and two others, testifying as to the informant's degree of involve-
ment. The implication from this statement by the court is that the
78. 497 F.2d at 93-94.

79. See notes 52-53, supra.
80. 497 F.2d at 93. This statement was expounded upon in the following footnote:
Much more than speculation is required. There must be a compelling reason for
the disclosure. "If the informer's relation to the acts leading directly to or con-
stituting the crime may be assumed from a fertile imagination of counsel, the
government in practically every case would have to prove affirmatively that the
informant had not done any such likely acts. Having done that, all would be
revealed and the informer privilege, deemed essential for the public interest, for
all practical purposes would be no more."
Id. at 93 n.5, quoting Miller v. United States, 273 F.2d 279, 281 (5th Cir. 1959).
LOUISIANA LAW REVEW [Vol. 40
court chose to accept the government's version of the informant's

participation in employing the Roviaro balancing test. This is par-
ticularly disturbing since the only government witnesses were a
special agent and a co-defendant who had pled guilty. Further, the
court acknowledged that there were disparities between the
testimony of the government's two witnesses as to the degree of the
informant's participation but called these "only minor variations."81
Finally, the co-defendant admitted that he had formerly been a
heroin addict and that the informant had been his principal supplier.
Therefore, undoubtedly the government was exercising great
leverage over both the co-defendant and the informant. In light of
this situation the defendant's allegations that the heroin packet
belonged to the co-defendant and not to him is not so untenable, and
the possibility of a frame-up is not so remote.2 Therefore, the court
was unwarranted in saying that defendant's account of the transac-
tion was "mere conjecture." The degree of participation by the infor-
mant in the criminal transaction is often the pivotal point in the
Roviaro balancing process, and it is contended that for the court to
rely unduly on the government's version of the informant's par-
ticipation places an insurmountable burden on the defendant to
show why disclosure is necessary.
The bottom line of this case, however, is that immediately
before trial, in the judge's chambers, the government's counsel in-
formed the court that the informant had been shot three times since
the time of the incident in question.8 Thus, this case illustrates that
if the defendant only shows what the court considers a "speculative"
81. 497 F.2d at 91.

82. Nondisclosure meant that the informant's credibility was never tested by
cross-examination. Other courts have noted that the reliability of informant informa-
tion is often suspect, for frequently the informant is motivated not by a desire to aid
law enforcement but rather by the hope of obtaining revenge, collecting a reward, pro-
curing drugs or obtaining a reduced sentence. In Jones v. United States, 266 F.2d 924,
928 (D.C. Cir. 1959), it is said: "The practice of paying fees to the informer for the
cases he makes may also be expected, from time to time, to induce him to lure non-
users into the drug habit and then entrap them into law violations." See United States
v. Suarez, 380 F.2d 713, 717 (2d Cir. 1967) (court considered defense objection that "the
pressure on informers to 'make' cases or go to jail destroys their reliability"); J.
WEINSTEIN, supra note 3, at 510-22.
83. 497 F.2d at 94. In light of this the court said:
The necessity of anonymity of the informant for his personal safety is greater
than the theoretical necessity possibly underlying refusals to disclose .. . . [this
ipformant's ] usefulness to law enforcement officials has already been
demonstrated by his role in supplying the information relative to Knight [the co-
defendant), another narcotics law offender. Disclosure of his identity would not
only destroy any future usefulness but possibly jeopardize his life . . . . The
positive advantages to the Government in withholding the informant's identity far
outweigh any speculative benefits to the accused.
1979] COMMENTS
need for disclosure, then the government can come forward with
compelling reasons for invoking the informer privilege. A question
arises, however, concerning the situation where the defendant has
convinced the court that disclosure is essential to his defense, and
once again the government comes forward with proof that the infor-
mant's life is seriously in danger. The probable answer is that the
government should be required to discontinue its prosecution of the
defendant."
The Fischercase represents an enlightened approach to the prob-
lem at hand. On the record before it, the court was unable to deter-
mine into which category the case should be placed. Pertinent to the
informant issue, the record only showed that the informant arranged
the parties' introduction, that three meetings occurred between two
narcotics agents and the defendants for the purpose of purchasing
cocaine, and that the informant was present throughout the first
meeting at which he helped test the cocaine.
Although the court concluded that this participation was more
active and significant than that of the informant in United States v.
Davis,85 it was unable to say from this record that the informant's
participation was such that fairness to the defendant required
disclosure and production regardless of any showing the government
could make in opposition. Under such circumstances the court felt
that it could only guess as to the substance of the informant's
testimony. Further, the court noted that the record was silent about
the interests which the government might have had in resisting
disclosure and production. Consequently, the court remanded the
case to the district court so that the judge could question the infor-
mant in camera to ascertain whether his testimony might be helpful
to the defendants. At this time, the judge was also directed to ques-
tion the informant and the government concerning their interests in
avoiding disclosure and production. Finally, the record was to be
supplemented with an order applying the Roviaro balancing test to
the facts of the case.
This is a significant and welcomed departure from prior cases.
The outstanding feature of this approach is the change of emphasis
with regard to the burden that defense counsel must carry in order
to require disclosure. Thus, the appellate court refused to penalize
the defendant for failing to establish in the lower court why
disclosure and production were necessary in order to make out a
defense. In fact, the court holds that it is the district judge's respon-
sibility to ascertain the possible relevance of the informant's
84. See text at notes 20 & 44, supra.

85. 487 F.2d 1249 (5th Cir. 1973).
LOUISIANA LA W RE VIEW [Vol. 40
testimony. It is submitted that this is a much more realistic ap-

proach, for often defense counsel will be unable to explain in the
abstract why the informant's testimony is crucial. Further, the
government under the court's ruling has a concurrent burden to
show why the informer privilege should be sustained. This approach
deals with the categories of cases typified by Toombs in a manner
more appropriate to the Roviaro balance of interests." In Toombs
the district court should have questioned the informant in camera.
Unless the undisputed facts show that an informant is a "mere"
tipster, as in Bourbois, or that the informant was an active and sole
participant in the criminal transaction as in Roviaro, the trial court
should order an in camera hearing to question the informant.
Although the Fischer court does not make this point clear, defense
counsel should be permitted to be present and allowed to question
the informant, in order to obtain meaningful results. This, of course,
does not mean defense counsel can ask the informant his name and
address. As the Fischer court points out, "an in camera hearing will
best accommodate the competing governmental and individual in-
terests '"87 in such a case.
86. Professor Pugh has pointed out that the United States Supreme Court
creatively dealt with the informant problem when it promulgated the Federal Rules of
Evidence. In rule 510, as promulgated, the Supreme Court provided that under certain
circumstances a trial judge can make an in camera investigation apart from both
counsel and defendant. 56 F.R.D. 183, 510 (1972). Unfortunately, Congress punted on
this and other privilege rules promulgated by the Court and chose instead to adopt a
single rule. FED. R.EVID. 501.
87. 531 F.2d at 788. The Fischer court cited two other recent fifth circuit cases as
authority for the in camera hearing in informant cases. United States v. Freund, 525
F.2d 873 (5th Cir. 1976), is not a true Roviaro problem, but does involve the protection
of confidential informants. The Freund court points out that "the United States
Supreme Court indicated that an in camera procedure was an acceptable device to aid
the trial court in its application of the Roviaro test." 525 F.2d at 877, citing Alderman
v. United States, 394 U.S. 165 (1969). United States v. Doe, 525 F.2d 878 (5th Cir.
1976), held that a defendant's sixth amendment rights to counsel and confrontation
were not violated when the district court conducted a post-trial in camera interview
with a confidential informant who was present during the narcotics transaction. The
court said:
[Iln light of [defendant's] alibi defense, the district court correctly reasoned that
disclosure would not be warranted unless the informant either could not positively
identify the [defendant] or possessed some other evidence that would tend to ex-
onerate [him]. Both the in camera interview and the test identification procedures
provided the court with precisely the sort of information upon which its ruling on
disclosure should have been based.
525 F.2d at 880. The opinion is not clear on this point but apparently the right to
counsel violation must have stemmed from the fact that defense counsel was not per-
mitted to attend the in camera hearing. The court's rejection of this argument seems
to indicate that the court does not have to permit defense counsel to be present at
such an in camera hearing in order to determine whether disclosure is necessary, but
this writer feels it should be otherwise.
19791 COMMENTS
Another case coming out of the fifth circuit, United States v.

Bower,88 is interesting in many respects, especially with regard to
the trial judge's approach to the request for disclosure, the defen-
dant's constitutional claims, and the strong defense of entrapment.
In Bower the illegal drug transaction was negotiated by a paid
government informant, who had moved into an apartment located
above that of the defendant. After the two had become acquainted,
the informant repeatedly requested that the defendant supply him
with narcotics. The defendant rejected these overtures on several
occasions, but finally agreed to supply a quantity of cocaine to an
Atlanta buyer. On the day of the transaction a government narcotics
agent, posing as the buyer, and the informant went to the defen-
dant's apartment to make the exchange. After delivering the cocaine
to the agent, the defendant was placed under arrest. A pistol was
found inside defendant's waistband, concealed by his shirttail.
In preparation for trial the defendant filed a motion to compel
the disclosure of the informant's name and address. The government
admitted the informant's true identity, but filed for a protective
order denying discovery of his current address. The trial court
granted the government's motion, but ordered the government to
make the informant available for a pretrial interview with defen-
dant. However, because the government failed to tender the infor-
mant to the defendant for interview prior to trial, the court held the
pretrial order had been violated and refused to allow the govern-
ment to call the informant as a witness.
On appeal the defendant alleged that his fifth amendment right
to a fair trial and his sixth amendment right of compulsory process
had been violated. The compulsory process claim was grounded on
the government's failure to develop affirmatively the facts and cir-
cumstances surrounding the informant's involvement in the case.
The court rejected this contention, noting that at no time, either
before or during the trial, did the defendant seek an interview with
the informant or attempt to subpoena him for trial, so that he did
not have standing to claim his constitutional right of compulsory
process had been violated.
Defendant's due process claim rested on the court's refusal to
compel disclosure of the informant's current address. The court
noted that when the trial judge is faced with a request for
disclosure of an informant, he must accommodate competing in-
terests by employing the Roviaro balancing test. The court also
stated that when the defense of entrapment is present, the scales
are usually tipped in favor of disclosure, "since the defendant's
freedom may rest upon allegations which the informer is in a unique
88. 575 F.2d 499 (5th Cir. 1978).

position to affirm or deny."9 Thus, the court concluded that the trial
judge reached a satisfactory solution, especially in light of the fact
that the defendant was armed when arrested and the informant had
expressed concern for his personal safety." As with defendant's
compulsory process claim, the court noted that the judge had taken
steps to protect defendant's right to prepare his defense, but that
defendant had failed to take advantage of his opportunity to inter-
view the informant. 1 Under these circumstances, the court of ap-
peals found that the trial judge's refusal to order disclosure of the
informant's address was not reversible error.
The fifth circuit's opinion in Bower is logical, especially with
respect to the defendant's request for the informant's address. The
court correctly approves of the trial judge's solution to the conflict-
ing interests of the government and the defendant. Such a pretrial
interview can be a viable alternative to complete disclosure and pro-
duction in many cases. Bower also correctly acknowledges the defen-
dant's significant interest in disclosure in an entrapment case.
Discussion of defendant's waiver of constitutional claims by his
failure to request the pretrial interview is beyond the scope of this
paper.
Louisiana Law
The Louisiana Supreme Court has recognized an informer
privlege," although no express statutory authority exists for it. On
the question of whether the defendant can overcome the informer
privilege and learn the name of a confidential informant, the leading
case of State v. Dotson" shows that the Louisiana Supreme Court
has adopted a strict Roviaro balancing test.'
89. Id. at 503, citing United States v. Gomez-Rojas, 507 F.2d 1213 (5th Cir.), cert.
denied, 423 U.S. 826 (1975).
90. See United States v. Hansen, 569 F.2d 406, 410 (5th Cir. 1978); United States
v. Toombs, 497 F.2d at 94.
91. At this point in the opinion the court reiterated its earlier statement that had
the defendant been pleased with the results of his interrogation of the informant, then
he could have subpoenaed him for appearance at trial through the office of the United
States Attorney. In light of the foregoing this case is quite distinguishable from a
classic Roviaro problem. In the instant case the government disclosed the informant's
true identity and apparently was going to call him as a witness, until the trial judge
denied to the government the right to call him as a witness due to a violation of the
court's pretrial order.
92. E.g., State v. O'Brien, 255 La. 704, 232 So. 2d 484 (1970); State v. Freeman,
245 La. 665, 160 So. 2d 571 (1964).
93. 260 La. 471, 256 So. 2d 594 (1971), cert. denied, 409 U.S. 913 (1972).
94. Apparently the state made no claim that the informer privilege could be ab-
solute or that Roviaro merely announced an evidentiary rule binding on federal courts.
Also, defendant made no constitutional claim of entitlement to disclosure and produc-
tion.
19791 COMMENTS
In Dotson police officers stopped a car on the basis of informa-

tion supplied by an informant whom one of the officers claimed to be
reliable. The informant had reported that the occupants of the vehicle
possessed narcotics. The occupants were placed under arrest,
although no search was conducted at that time. At the police station
the driver consented to a search of his car, which revealed no nar-
cotics. The defendant exercised his right to remain silent. The officer
who received the tip from the informant obtained a search warrant.
The officer thereupon searched defendant's clothing and found a
matchbox allegedly containing marijuana.
At trial the defendant claimed that he had been the victim of a
frame-up. On cross-examination of the arresting officer, defense
counsel attempted to learn the name of the informant. With the jury
retired, defense counsel stated for the record:
The defendant will allege that the stuff that was found on him,
marijuana, was planted there by the informant. And as direct
part of his defense, it will be necessary to place this informer on
the stand and attack his credibility and attack whether or not he
did in fact, plant the stuff on him. I think this is an exception to
the disclosure rule."
The trial judge denied this request, but a bare majority of the Loui-
siana Supreme Court (three judges dissenting) on original hearing
held that the denial was reversible error. The court relied on
Roviaro and language in a prior Louisiana case," stressing the vital
nature of the information to the defense on the merits.
The decision ignited a considerable uproar, as district attorneys
throughout the state filed amicus curiae briefs in support of the
state's application for a rehearing. On rehearing, the court reversed
itself (three judges dissenting) stating that the informer privilege
was of such social importance that it should be zealously guarded by
the courts. The defendant has the burden to show exceptional cir-
cumstances justifying disclosure. In any event, the court continued,
much discretion is vested in the trial judge in determining whether
the circumstances warrant disclosure. Specifically, the court
95. 260 La. at 485, 256 So. 2d at 599. At a later point in the trial, defense counsel
once again attempted to learn the informant's identity, asserting that either the officer
or the informant planted the marijuana on the defendant.
96. State v. Pagnotta, 253 La. 770, 220 So. 2d 69 (1969) (per curiam). In Pagnotta,
Justice Hamlin found correct the following proposition: "There was (no] allegation here
by the defendant through his counsel or through any testimony that the confidential
informant had framed him or had planted the evidence in his apartment, or had done
any other act which would require revealing his identity." Id. at 779, 220 So. 2d at 72.
However, in Dotson, Justice Hamlin dissented in the original hearing, protesting that
his statement in Pagnotta was not intended to open the door for disclosure of an in-
formant's identity every time defense counsel claims his client was framed without of-
fering any proof in support of such a claim. 256 So. 2d at 603 (Hamlin, J., dissenting).
distinguished Roviaro since, in the instant case, the prosecution's

evidence did not show that the informant set up and participated in
the crime. Finally, the court concluded that the trial judge was
justified in rejecting defendant's speculative claim of frame-up, for
to do otherwise would be to jeopardize enforcement of the state's
narcotic laws."7
The following criticism of the Dotson case has been made by one
commentator:
[T]he state should have been forced to reveal the name of the in-
former or to dismiss the case; otherwise, under the facts given,
it is believed, defendant was denied a most fundamental con-
stitutional protection, his right of compulsory process. Posses-
sion of narcotics is an offense which lends itself readily to the
possibility of a frame-up .... By denying the defendant access to
the informer, he was cut off from securing information from one
of the two people who, under his theory of the case, could
establish his innocence. Perhaps defendant was not in good faith
in asserting the frame-up defense, but then again perhaps he
was. The informant was the key . . . . [T]he name of the infor-
mant was necessary if defendant's day in court was to afford
him a meaningful test of the state's case."
This writer agrees with the above commentary, for although the
court's strict reading of Roviaro may be in line with "mere tipster"
cases in other jurisdictions, it is contended that the informant's ac-
tive participation in the crime should not always be the touchstone
for disclosure. The defense of a frame-up is subject to abuse, but the
Supreme Court in Roviaro emphasized that certain defenses
necessarily require disclosure if the defendant is to be accorded fun-
damental fairness. Narcotics cases lend themselves to frame-up. One
might ask why the defendant did not dispose of the marijuana at
some convenient time while the police were obtaining a search war-
rant. In any event, it is difficult for a defendant to show he was
framed, in order to require disclosure, until he has a chance to ex-
amine the person who most likely framed him."
In State v. Rhodes"' the Louisiana Supreme Court reiterated its
holding in Dotson, emphasizing that the burden is on the defendant
to show exceptional circumstances warranting disclosure. In Rhodes
the informant tipped off police that the defendant had perpetrated
the armed robbery. Since the defendant was subsequently convicted
97. 260 La. at 511, 256 So. 2d at 608.
98. The Work of the Louisiana Appellate Courts, 1971-1972 Term-Evidence, 33
LA. L. REV. 306, 314 (1973), reprinted in G. PUGH. supra note 25, at 188.
99. Dotson is a classical illustration of how the informer privilege can be invoked
to vitiate the defendant's right of compulsory process.
100. 308 So. 2d 770 (La. 1975).
1979] COMMENTS
on independent identification evidence of eyewitnesses and the in-

formant was a mere tipster, this case is consistent with the
jurisprudence of most jurisdictions.
In State v. Santos' Justice Tate rephrased the Louisiana test
bringing the Louisiana view more in line with modern
jurisprudence. The defendant must show "that disclosure of the in-
formants identity [is] essential for [his] defense on the merits or for
his grounds for the motion to suppress."1 2° This may represent
nothing more than a change in semantics, but since Santos is
another "mere" tipster case, it is not possible to tell if the court is
softening its "exceptional circumstances" approach announced in
Dotson.10
In State v. Dabon'0 ' it was found that the identity of the infor-
mant was irrelevant to the determination of the accused's guilt or
innocence, since the informant had not participated in any act or
event for which the defendant was on trial. In discussing the in-
former privilege, Justice Tate made the following observation: "It
[the privilege] is generally recognized in Louisiana, although the
secrecy of identity may be required to yield to competing interests
or other constitutional or individual interests where circumstances
show the overriding weight of the latter." ' 5 To this opinion three
justices merely concurred, and Justice Tate himself recognized that
it is only in exceptional circumstances that disclosure of the infor-
mant's identity will be necessary.
The disturbing opinion of State v. Williams'" evoked a well-
reasoned concurrence from Justice Tate. In Williams the informant
and his wife accompanied a New Orleans narcotics agent to a local
bar where the informant introduced the defendant to the agent.
Pretending to use their combined resources, which was really marked
money, the informant and the agent purchased heroin from the
defendant. At trial defense counsel repeatedly tried to learn the
name of the informant, but the trial judge sustained the state's ob-
jection to this inquiry.
101. 309 So. 2d 129 (La. 1975).

102. Id. at 132.
103. In commenting on Santos, Professor Pugh has stated:
The applicability of the test in a particular case, however, is difficult to determine
indeed, for under prevailing Louisiana practice a defendant's inability to find out
the identity of the informant makes it peculiarly difficult for him to demonstrate
the benefits he hopefully would derive from the testimony of the unidentified
unknown individual.
The Work of the Louisiana Appellate Courts, 1974-1975 Term-Evidence, 36 LA. L.
REV. 651, 666-67 (1976), reprinted in G. PUGH, supra note 25, at 222.
104. 337 So. 2d 502 (La. 1976).
105. Id. at 503.
106. 347 So. 2d 184 (La. 1977).
Relying on Dotson, the majority noted that defense counsel had

failed to make known to the trial judge the reason for his request
for disclosure of the identity of the informant, or how it would affect
his defense. Since the burden is on the defendant to show excep-
tional circumstances which would justify disclosure, the trial judge
did not abuse his discretion in denying this discovery to the defen-
dant. Even in his appellate brief, as the supreme court noted, defen-
dant failed to allege or show prejudice as a result of the failure to
disclosure the informant's identity.
In his concurring opinion Justice Tate noted that defendant's
claim presented a very close issue of reversible error. Pointing out
that the informant, aside from the accused, was the sole nongovern-
mental witness and participant in the transaction, Justice Tate
stated that applying the majority rationale on rehearing in Dotson
the informant's identity would normally be discoverable under the
Williams facts. Thus, if the record had indicated any reason why
disclosure would have been relevant and helpful to the defense of
the accused, then under the facts of this case the accused would
have been entitled to disclosure of the informant's name. However,
because the defendant had not at trial or on appeal advanced any
purpose for ascertaining the informant's name, Justice Tate felt con-
strained to concur in the affirmance. In particular the defense never
indicated that it wished to subpoena or to interrogate the informant,
nor did it allege unsuccessful attempts to ascertain his identity and
whereabouts. Finally, it was noted that the trial judge did permit a
rather full cross-examination on the defendant's behalf as to the in-
formant's employment background, criminal record, and method of
compensation for his services. Justice Tate concluded that the judge
committed error in denying disclosure, but under the circumstances
reversal was not warranted.
It is submitted that the concurring opinion addressed the infor-
mant problem with more insight than the majority opinion, and
hopefully Justice Tate's comments will serve as a useful guide for
future cases. The majority opinion ignored the participation aspect
of this case and its rationale in Dotson, merely relying on defense
counsel's failure to explain to the court why this information was
crucial to the defense. It can be argued that in such a case the need
for the informant's identity is self-explanatory although it is impossi-
ble to show specifically what help his production will provide. Defen-
dants in Louisiana are at least forewarned that they should be
prepared to show how the informant's testimony might be crucial to
specific defenses."'
107. For other interesting Louisiana cases which have been decided recently, see
State v. Diliberto, 362 So. 2d 566 (La. 1978) (trial judge's grant of motion to disclose
was premature where issue was probable cause for search); State v. Weems, 358 So. 2d
1979] COMMENTS
Conclusion
One can conclude from the foregoing analysis that there is a
strong public policy in favor of protecting the identity of confiden-
tial informants."°8 To date the United States Supreme Court has not
given specific constitutional dimensions to the right of the defendant
to disclosure of the identity of informants, although rigorous
arguments have been made in lower federal courts and state courts
that due process, the right of confrontation, or the right of com-
pulsory process requires disclosure in certain cases. At least one
federal judge has agreed that Roviaro, the leading Supreme Court
case,' 9 is grounded on due process of law."' Another federal court
has held that the compulsory process clause of the sixth amendment
requires disclosure of an informant's identity, absent compelling
state interests in maintaining his secrecy."' Commentators have
argued persuasively that once it has been determined that an infor-
mant possesses evidence which is relevant and material to the
determination of the defendant's guilt or innocence, the sixth
amendment overrides the government's informer privilege."'
However, the key to this constitutional right still lies in convinc-
ing the court that the informant may be able to give testimony
which is necessary to a fair determination of the issue of guilt or in-
nocence." 8 Such a crucial demonstration, which may be impossible
for a defendant to present in the abstract, emphasizes the necessity
of in camera hearings. As Weinstein has noted, most courts have
assumed that in following Roviaro they have had but two
choices-to order public disclosure of the informant's identity or to
deny disclosure. Consequently, the required balancing of public in-
terests with the accused's right to make out a defense often pro-
285 (La. 1978) (where defendant admitted knowing informant's name and address,
where defendant made no attempt to subpoena informant, and where judge permitted
full cross-examination concerning his background, disclosure not necessary despite in-
formant's presence at scene of crime and alleged defense of entrapment); State v.
Helmke, 350 So. 2d 1191 (La. 1977) (in prosecution for gambling offense, where infor-
mant placed monitored phone calls to accused, disclosure not necessary where state
stipulates that no evidence concerning calls will be introduced).
108. See notes 3-7, supra
109. See text at notes 27-31, supra
110. See text at notes 35-42, supra.
111. Melendez v. Superintendent, Clinton Correctional Facility, 399 F.2d 430
(E.D.N.Y. 1975). See notes 21, 25 & 65, supra.
112. See text at notes 20, 25 & 44, supra.
113. See Roviaro v. United States, 353 U.S. 53, 63 (1957) (informant's information is
"relevant and helpful to the defense of an accused, or is essential to the fair determina-
tion of a cause"); FED. R. EVID. 510(c)(2), reprinted in J. WEINSTEIN, supra note 3, at
510-11; Westen, supra note 20, at 159 ("if the evidence the defendant seeks would tend
to contradict the very elements of the charge against him").
LOUISIANA LAW REVIEW [Vol. 40
ceeds in large measure on speculation." 4 An in camera hearing

resolves this dilemma by providing an innovative intermediate posi-
tion. The balancing of interests of the accused and society can pro-
ceed on the basis of an informed judgment, which is subject to
judicial review, since a record of the in camera proceeding must be
made available to the appellate court." 6 At such a hearing the judge
can probe into the informant's role in the litigated matter, ascertain
his credibility, and determine what dangers he would encounter if
his identity were revealed. According to Westen, an in camera hear-
ing will effectuate his proposed constitutional rule that the defen-
dant's sixth amendment right to elicit exculpatory evidence is
forceful enough to put the state to the choice between preserving
secrecy and prosecuting the accused." '
The fifth circuit has generally avoided the constitutional aspects
of informant cases and has instead relied on the "fundamental
fairness" balancing test of Roviaro. Although certain cases have ap-
plied the Roviaro balancing test to the facts in a questionable man-
ner, the fifth circuit has at times creatively handled the informant
problem by the use of the in camera hearing and the pretrial inter-
view without full disclosure. Louisiana courts are extremely reluc-
tant to find a necessity for disclosure. The Louisiana bar has also
been unsophisticated in its attempts to convince the courts of the
necessity for disclosure, although this writer sympathizes with the
difficulty of such a showing in most cases. It is submitted that the
Louisiana Supreme Court's approach is much too rigid, placing an
impossible burden on defense counsel and often violating the defen-
dant's constitutional rights. It is hoped that in the future, both the
Louisiana courts and the federal district courts in the fifth circuit
will employ the in camera hearing with a more sensitive eye toward
the accused's constitutional right to make out a defense.
Michael D. Bewers
114. J. WEINSTEIN, supra note 3, at 510-21, citing United States v. Jackson, 384
F.2d 825, 827 (3d Cir. 1967), cert. denied, 392 U.S. 932 (1968) ("In the informer situation
the burden placed upon the trial judge is great since he must often balance conflicting
interests without being aware of what relevant information, if any, the informer
possesses.").
115. J. WEINSTEIN, supra note 3, at 510-23, citing United States v. Day, 384 F.2d
464, 470 (3d Cir. 1967) (McLaughlin, J., concurring) ("I consider it clear that an in
camera proceeding is warranted for the reason that the power to rule on the question
of disclosure is vested by Roviaro solely within the discretion of the trial judge, who
must be allowed to rely on the investigative power at his disposal if he is to render an
enlightened and just decision.").
116. See notes 9, 20 & 44, supra.

Defendant's Right to Learn Confidential Informant's Identity

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Defendant's Right to Learn Confidential Informant's Identity

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Louisiana Law Review

Defendant's Right to a Confidential Informant's

Although the purpose of the criminal justice system is to find

the commission of crimes.' As McCormick has pointed out,

tions, the very existence of such a privilege raises serious constitu-

Confrontation and Compulsory Process

9. Westen, Confrontation and Compulsory Process: A Unified Theory of

witnesses at trial. 8 The final layer of Westen's confrontation

Westen's compulsory process analysis shows that this sixth amend-

In connection with the informer privilege and in light of the

The conclusion is inescapable that violence would be done to the

Due Process and Roviaro

process has been equated to the basic concepts of fairness." A court

Believing that no fixed rule with respect to disclosure was

amendment nor the sixth amendment right of confrontation is

33. Id. at 313.

noted that the phrase "fundamental requirements of fairness" as used

It can be concluded that the informer privilege, like other

exculpatory testimony. As noted by Westen: "[W]hile the Court

45. Id. at 165.

why he needs to know the identity of the informant. 2 However, if

The Fifth Circuit

each individual case. 56 However, as one recent fifth circuit case,

Melendez can be distinguished from Clark in that the defendant in

per curiam opinion did not address defendant's constitutional claims.

78. 497 F.2d at 93-94.

court chose to accept the government's version of the informant's

81. 497 F.2d at 91.

84. See text at notes 20 & 44, supra.

testimony. It is submitted that this is a much more realistic ap-

Another case coming out of the fifth circuit, United States v.

88. 575 F.2d 499 (5th Cir. 1978).

In Dotson police officers stopped a car on the basis of informa-

distinguished Roviaro since, in the instant case, the prosecution's

on independent identification evidence of eyewitnesses and the in-

101. 309 So. 2d 129 (La. 1975).

Relying on Dotson, the majority noted that defense counsel had

ceeds in large measure on speculation." 4 An in camera hearing

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